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2019 (3) TMI 1997 - BOMBAY HIGH COURTPreventive Detention order - illegal business of money lending - dangerous person within the meaning of Section 2(b1) of the MPDA - infringement of fundamental right guaranteed under Article 22(5) of the Constitution of India - HELD THAT:- Admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu’s right to make his representation at the earliest for its expeditious consideration. The representation made to the State Government dated 15/11/2018 was received by the State Government on 17/11/2018 and it was kept pending till the receipt of the report of the Advisory Board which was received only on 04/12/2018. The representation, thereafter, was rejected on 04/12/2018 as on the same day, the order of detention was also confirmed - One of the major requirements of Article 22(5) is that the detenu must be afforded the earliest opportunity of making a representation against the order. This requirement will not be effective if such a representation is not decided at the earliest. Affording the detenu the earliest opportunity of making a representation is meaningless unless such representation is considered and decided at the earliest. In the instant case, admittedly, the representation was received by the State Government on 17/11/2018 and was decided only on 04/12/2018. It was kept pending for receipt of report of the Advisory Board. This course of inaction was directly contrary to the letter and spirit of Article 22(5) of the Constitution of India. In the instant case, there is clear violation of the constitutional rights of the Petitioner - the detention order is liable to be set aside. The detention order passed by the Respondent No.1 and confirmed by the Respondent No.2, is set aside - The Petitioner be released from his detention forthwith, if he is not required in any other case.
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